RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070011308 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states that he sustained shrapnel wounds to the left knee in 1943 while serving in New Guinea in the Pacific Theater during World War II (WWII).  He also states that at the time he was wounded, he refused the Purple Heart because he felt others who received more serious injuries or were killed in action were more deserving of the award.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  a copy of the Department of Veterans Affairs (VA) Rating Decision, dated 1 September 1994; 

	b.  a copy the VA Compensation and Pension Examination Report, dated 14 May 2004; 

	c.  copies of VA Medical Center Consult Requests, dated 6 December 2005;

	d.  a copy of an orthopedic doctor's letter, dated 17 January 2006;

	e.  a copy of his WD AGO Form 43-55 (Enlisted Record and Report of Separation, Honorable Discharge), dated 11 September 1945; and,

	f.  a witness statement, dated 20 May 2007.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows he was inducted in the Army of the United States and entered active duty on 1 August 1941 in military occupational specialty (MOS) 060 (Cook).

4.  The applicant's WD AGO Form 53-55 shows he served in the Asiatic-Pacific Theater of Operations during WWII.  Item 6 (Organization) of this form shows he was assigned to Squadron A, 3008th Army Air Force Base Unit.  However, there is sufficient evidence in the applicant's records to show that he was actually assigned to the 158th Infantry Regiment and that upon his return to the United States, he was further assigned to the 3008th Army Air Force Base Unit for the purpose of separation from the Army.

5.  The applicant's WD AGO Form 53-55 further shows that he departed the United States on 24 November 1941 and arrived in Panama on 3 December 1941.  He later departed Panama on 3 January 1943 and arrived in New Guinea on 31 January 1943.  He departed New Guinea on 4 October 1944 and arrived in the United States on 28 December 1944.  He completed 1 year and 6 months of continental service and 3 years, 1 month, and 5 days of foreign service.  He was honorably separated on 11 September 1945.

6.  Item 31 (Military Qualifications and Date) of the applicant's WD AGO Form  53-55 shows he was awarded the Combat Infantryman Badge and the Marksman Marksmanship Qualification Badge with Rifle Bar.

7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded the Asiatic-Pacific Theater Ribbon with one bronze service star, the American Theater Ribbon, the American Defense Service Medal, and the Good Conduct Medal.  Item 33 does not show award of the Purple Heart.

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "None."

9.  The applicant's records do not contain General Orders awarding him the Purple Heart. 
10.  The applicant's medical records show that he injured his knee in a coal mine while working in Ohio in September 1939.  His condition was not disqualifying for induction into the Army of the United States; however, he continued to experience knee-pain throughout his military service.  He was examined by a military surgeon on 5 August 1942 who determined that there was no evidence of fracture, dislocation, arthritis, or binomially in the applicant's knee.  He was examined again on 25 August 1942 and was diagnosed with "No disease.  Ill-defined condition of skeletal system manifested by alleged pain in the left knee joint." 

11.  The applicant submitted a copy of the VA rating decision, dated 1 September 1994, showing that he was evaluated for a service-connected left knee condition, and that his rating evaluation was increased to 30 percent.

12.  The applicant also submitted a VA Compensation and Pension Examination Report, dated 14 May 2004, showing that the VA listed his knee condition as the result of being hit by a shell as he was getting off a boat during an invasion in 1943 and that the shell is embedded in his knee.  The report further shows that the applicant was placed in a hospital in 1943 and had surgical intervention done to his left knee.

13.  The applicant also provided copies of VA Consult requests, dated 6 December 2005, showing that his knee injury happened in 1943 during a battle.

14.  The applicant further submitted a statement by an orthopedic doctor, dated 17 January 2006.  The medical doctor states that the applicant was wounded in his left knee while serving with the 158th "Bushmasters" in 1943 and that his injury required operative intervention.

15.  The applicant submitted a witness statement, dated 20 May 2007.  The witness states that he personally witnessed the applicant being wounded in his left knee while taking a rubber boat to shore filled with ammunition in New Guinea, in 1943.

16.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.
17.  Army Regulation 672-5-1 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

18.  The applicant's records show that he is entitled to additional awards that are not listed on his WD AGO Form 53-55.

19.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the World War II Victory Medal.  The World War II Victory Medal was established by the act of Congress on 6 July 1945.  It was awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.  

20.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

21.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 shows he participated in the New Guinea campaigns of WWII.

22.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Asiatic-Pacific Campaign Medal.  This regulation also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation or listed in item 32 of the WD AGO Form 53-55.  This regulation further states that authorized bronze service stars will be worn on the appropriate campaign or service medal including the Asiatic-Pacific Campaign Medal.

23.  DA Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows that the 158th Infantry Regiment was credited with the Bismarck Archipelago (15 December 1943 to 27 November 1944), the Luson (15 December 1944 to 4 July 1945), and the New Guinea (24 January 1943 to 31 December 1944) campaigns of WWII.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.

2.  Third-party letters, which were prepared more than 60 years after the fact, do not by themselves conclusively prove the applicant was wounded or injured as a result of hostile action.  

3.  The applicant's available medical records do not indicate that he suffered any shrapnel wound to the left knee and there is no indication of when or where he was injured or wounded and whether the injury was a result of hostile action and/or whether he was treated by military medical personnel.  

4.  There are no General Orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

5.  Evidence of record shows that the applicant was awarded the Combat Infantryman Badge.  Therefore, he is entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his WD AGO Form 53-55 to show the Bronze Star Medal.

6.  Evidence of record shows that the applicant served a qualifying period for award of the World War II Victory Medal.  Therefore, he is entitled to award of the World War II Victory Medal and correction of his records to show this award.

7.  The applicant participated in three campaigns in the Asiatic-Pacific Theater of Operations during World War II.  Therefore, he is entitled to correction of his military records to show three bronze service stars to be affixed to his already awarded Asiatic-Pacific Campaign Medal.

8.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  __mjnt__  __tmr___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned to award the Purple Heart.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show award of the Bronze Star, the World War II Victory Medal, and three bronze service stars to be affixed to his already awarded Asiatic-Pacific Campaign Medal.





						John Slone
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070011308
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.